State v. Miles, 54487

• Decision Date: 29 April 1983
• Docket Number: No. 54487,54487
• Citation: 233 Kan. 286,662 P.2d 1227
• Parties: STATE of Kansas, Appellee, v. Wiley James MILES, Appellant.
• Court: Kansas Supreme Court

Page 1227

662 P.2d 1227

233 Kan. 286

STATE of Kansas, Appellee, v. Wiley James MILES, Appellant.

No. 54487.

Supreme Court of Kansas.

April 29, 1983.

Syllabus by the Court

1. Without regard for the truth or falsity of a confession, and even though there is ample evidence aside from the confession to support a conviction, a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession.

2. Due process requires that procedures for determination of the voluntariness of a confession must be fully adequate to insure a reliable and clear-cut determination, including the resolution of disputed facts upon which the voluntariness issue may be determined. A hearing on a Motion to Suppress Confession or Admission as provided by K.S.A. 22-3215 or a Jackson v. Denno type hearing is fully adequate for such a determination.

3. A defendant in a criminal case has a constitutional right at some stage in the proceeding to object to the use of an allegedly involuntary confession and have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession.

4. Our contemporaneous objection rule requires timely and specific objections to the admission of evidence in order for the question of admissibility to be considered on appeal.

5. A defendant has a right at some stage in the criminal proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness. Kansas procedure, consistent with the United States Constitution, requires that defendant's confession be challenged at trial or not at all, unless the party had no opportunity to object.

6. One attempting to exclude evidence, whether by objection or motion, has a duty to indicate the specific grounds so as to alert the court as to the question raised. Absent some objection or motion by the defendant to the admission of his confession or admission, the United States Constitution does not require a hearing on the voluntariness to be conducted prior to its admission into evidence.

7. The propriety of inflicting severer punishment on second and subsequent offenders has long been recognized in this state. They are not punished the second time for the earlier offense, but the repetition of criminal conduct aggravates their guilt and justifies increased penalties upon conviction.

8. Prior drug convictions within this State and drug convictions of other jurisdictions may be used to increase an offender's punishment for sentencing purposes under K.S.A. 65-4127a, if (1) the prior conviction was for an offense of a character specified in the Kansas Uniform Controlled Substances Act, and (2) the prior conviction was of the same class, i.e., a felony.

Gordon R. Olson, of Olson & Smith, Sabetha, argued the cause and was on brief for appellant.

William C. O'Keefe, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on brief for appellee.

LOCKETT, Justice:

This is an appeal from the District Court of Nemaha County, Kansas where the defendant was convicted of possession of marijuana (K.S.A. 65-4127b[a ] and possession of heroin (K.S.A. 65-4127a). The defendant was originally sentenced to not less than 10 nor more than 30 years; the sentence was later modified to not less than 5 nor more than 20 years. Defendant has appealed.

The facts are as follows: In the early morning hours of October 24, 1981, Officer Kirwin pulled behind the defendant's car on Highway 75. After observing the defendant's car cross the center line three times, Officer Kirwin turned on his lights and stopped the defendant's car. The defendant was the only occupant of the car. When Officer Kirwin approached the car he noticed the smell of marijuana. Asking the defendant to exit the vehicle, the officer shined his light in the ashtray and saw what appeared to be a marijuana cigarette butt. Officer Kirwin asked the defendant if he could look into the car; receiving permission, he seized the marijuana butt and warned the defendant of his Miranda rights. When asked to identify the item, the defendant stated that it was a marijuana cigarette butt. Defendant then reached into his shirt pocket and pulled out another cigarette which he identified as a marijuana cigarette. Officer Kirwin then asked if there were additional marijuana cigarettes in the car. Defendant replied "no" and then gave the officer permission to search the car. Officer Kirwin found an additional marijuana cigarette butt and a blue shaving kit on the floor of the car. Defendant stated that the kit was his. Officer Kirwin took the kit back to his car and had the defendant open the kit. Officer Kirwin found a plastic bag of marijuana seeds and individually wrapped aluminum foil packets. The officer opened one of the packets and saw a brown powder which he suspected to be heroin.

Terry L. Koch, a chemist for the Kansas Bureau of Investigation, examined the evidence. At the trial he identified one of the cigarettes as containing marijuana and testified that heroin was contained in the foil packets. From his conviction defendant appeals.

Defendant raises fourteen issues in his appeal. It would not be productive in this opinion to set out each of the numerous issues raised and discuss them individually. It is sufficient to relate each point has been individually considered and no error of substance has been found. Two issues numbered ten and fourteen by the appellant are of such import they merit discussion.

K.S.A. 22-3215 is the defendant's statutory right to suppress a confession or admission given by the defendant on the grounds that a statement is not admissible as evidence. It provides:

"(1) Prior to the preliminary examination or trial a defendant may move to suppress as evidence any confession or admission given by him on the ground that it is not admissible as evidence.

"(2) The motion shall be in writing and shall allege the grounds upon which it is claimed that the confession or admission is not admissible as evidence.

"(3) If the motion alleges grounds which, if proved, would show the confession or admission not to be admissible the court shall conduct a hearing into the merits of the motion.

"(4) The burden of proving that a confession or admission is admissible shall be on the prosecution.

"(5) The issue of the admissibility of the confession or admission shall not be submitted to the jury. The circumstances surrounding the making of the confession or admission may be submitted to the jury as bearing upon the credibility or the weight to be given to the confession or admission.

"(6) The motion shall be made before preliminary examination or trial, unless opportunity therefor did not exist or the defendant was not aware of the ground for the motion, but the court in its discretion may entertain the motion at the preliminary examination or the trial."

The motion to suppress a confession or admission under K.S.A. 22-3215 is available only to the defendant.

A second method of determining the admissibility of a defendant's confession or admission is the Jackson v. Denno hearing. The Jackson v. Denno hearing can be requested by (1) the defendant, (2) the State, or (3) the court on its own motion prior to or during a trial. A motion to suppress (K.S.A. 22-3215) or a Jackson v. Denno hearing raises the same issue, therefore there is no requirement that the court conduct both a hearing on the motion to suppress (K.S.A. 22-3215) and a Jackson v. Denno hearing on the same facts.

June 22, 1964, the United States Supreme Court handed down its decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), 1 A.L.R.3d 1205. The facts were summarized as follows:

"Under the New York procedure concerning determination of the voluntariness of a confession offered by the prosecution, the trial court excludes it if in no circumstances it could be deemed voluntary, but leaves to the jury the ultimate determination of its voluntary character, as well as its truthfulness, if the evidence presents a fair question as to its voluntariness. In compliance with this procedure, a New York state court, in a prosecution for murder, submitted to the jury, along with the other issues, the question of the voluntariness of a confession obtained from petitioner while he was hospitalized and after he had been given doses of demerol and scopolamine. Petitioner was convicted and his conviction was affirmed by the New York Court of Appeals, the United States Supreme Court denying certiorari. His petition for habeas corpus was denied in the United States District Court for the Southern District of New York (206 F.Supp. 759), and the Court of Appeals for the Second Circuit affirmed (309 F.2d 573).

"On certiorari, the United States Supreme Court reversed and remanded the case to the District Court. In an opinion by White, J., expressing the views of five members of the Court, it was held that (1) the New York procedure described above violated the due process clause of the Fourteenth Amendment and that the contrary decision in Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522, should be overruled; (2) a jury cannot be assumed to have reliably found a confession voluntary where it also determines its truthfulness; (3) the undisputed evidence in the record did not show the involuntariness of the confession, in view of the state's evidence that the drugs neither had nor could have had any effect upon petitioner at all; (4) petitioner was entitled to a hearing in the state courts with a view to determining the voluntariness of the confession; (5) petitioner was entitled to a new trial only if the hearing in the state court resulted in a determination that the confession was not voluntary; and (6) the District Court should allow the state a reasonable time to afford petitioner a hearing or...